PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 October 2001                   
	DOCKET NUMBER:   AR2001060936

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that the records be corrected to show her request for a deemed election of the Survivor Benefit Plan (SBP) of her deceased former spouse, a former service member (FSM), was received in a timely manner.

3.  The applicant states that she was married to the FSM for 37 years.  She was getting one-half of his retired pay.  She believes that if he had not been taking so much medication for pain he would not have left her.

4.  The FSM’s military records show that after having had prior U. S. Army Reserve service, he enlisted in the Regular Army in 1962.  He and the applicant married on 16 April 1962.

5.  The FSM retired on 1 October 1981.  At that time, he enrolled in the SBP for spouse only coverage, reduced base amount ($300.00).

6.  The FSM and the applicant divorced on 9 July 1999.  The divorce decree states in pertinent part “…the Plaintiff also qualifies for and shall hereinafter retain her status/benefits/pension under the Survivor Benefit Plan.”  On             27 August 1999, the applicant requested a deemed election of the SBP.  It appears that the Defense Finance and Accounting Service (DFAS) received the request for deemed election but not a copy of the divorce decree and therefore could not process the request.

7.  The FSM died on 3 August 2000.  He apparently never remarried and no one is currently receiving the SBP annuity.

8.  Public Law 92-425, the SBP, enacted 21 September 1972, provided that military members on active duty could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents. 

9.  Public Law 97-252, the Uniformed Services Former Spouses Protection Act (USFSPA), dated 8 September 1982, established SBP for former military spouses for retiring members.

10.  Public Law 98-94, dated 24 September 1983, established former spouse coverage for retired members (Reservists, too).

11.  Public Law 99-661, dated 14 November 1986, permitted divorce courts to order SBP coverage (without the member’s agreement) in those cases where the retiree had elected spouse coverage at retirement or was still on active duty and had not yet made an SBP election.

12.  Title 10, U. S. Code, section 1448(b)(3) incorporates the provisions of the USFSPA relating to the SBP.  It permits a person who, incident to a proceeding of divorce, is required by court order to elect to provide an annuity to a former spouse to make such an election.  Any such election must be written, signed by the person making the election, and received by the Secretary concerned within one year after the date of the decree of divorce.  If that person fails or refuses to make such an election, section 1450(f)(3)(A) permits the former spouse concerned to make a written request that such an election be deemed to have been made.  Section 1450(f)(3)(C) provides that an election may not be deemed to have been made unless the request from the former spouse of the person is received within one year of the date of the court order or filing involved.

CONCLUSIONS:

1.  The applicant was awarded the SBP in the divorce decree and she requested a deemed election within the required one-year period.  However, it appears that 
while DFAS received the request for deemed election it did not receive the divorce decree and so her request was not processed.  It appears the FSM did not remarry and no one is currently receiving the SBP annuity.  It would be appropriate to show that both the request for deemed election and the divorce decree were received by the proper office and processed in a timely manner, making the applicant eligible to receive the SBP annuity.

2.  In view of the foregoing, the FSM’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the applicant requested a deemed election of the FSM’s SBP and forwarded the request and a copy of the divorce decree to DFAS on 27 August 1999.

2.  That the proper office received the request for deemed election and the divorce decree and processed them in a timely manner.

3.  That the Defense Finance and Accounting Service will be instructed to collect any SBP costs due. 

4.  That the applicant be paid an annuity based upon the FSM’s election to participate in the SBP and the applicant’s request for a deemed election retroactive to the date of his death.

BOARD VOTE:  

___fne__  __mhm___  __bje___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Fred N. Eichorn
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2001060936	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	137.04	
2.		
3.		
4.		
5.		
6.